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[ NOTE FROM DAVID ARNOTT. THE ILO GOVERNING BODY MEETS 4-19 NOVEMBER. IN ITS
DISCUSSION OF BURMA IT WILL HAVE BEFORE IT THE FOLLOWING DOCUMENT, WHICH IS
ALSO ON THE ILO WEBSITE AT
http://www.ilo.org/public/english/20gb/docs/gb276/gb-6.htm ]
ILO Home
------------------------------------------------------------------------
INTERNATIONAL LABOUR OFFICE GB.276/6
[...ILO LOGO...] 276th Session
Governing Body Geneva, November 1999
------------------------------------------------------------------------
SIXTH ITEM ON THE AGENDA
Measures, including action under article 33 of the Constitution of the
International Labour Organization, to secure compliance by the Government
of Myanmar with the recommendations of the Commission of Inquiry
established to examine the observance of the Forced Labour Convention, 1930
(No. 29)
I. Information available on measures taken by the Government of Myanmar
following the recommendations of the Commission of Inquiry, and action
taken in this regard within the ILO since March 1999
1. At its 274th Session (March 1999) the Governing Body decided:
(a) to request the Director-General to inform the members of the Governing
Body, by means of a written report, on or before 21 May 1999, regarding
measures which the Government of Myanmar has taken to comply with the
recommendations of the Commission of Inquiry, together with details of any
technical assistance requested or provided;
(b) to request the Director-General, in preparing the abovementioned
report, to take into account any comments by the Government of Myanmar, as
well as information from workers' and employers' organizations and from
other reliable sources;
(c) and immediately thereafter:
(i) to request the Director-General to disseminate the findings and
conclusions of the Commission of Inquiry throughout the UN system and
include in the abovementioned report any responses received; and
(ii) to place on the agenda of the 276th Session of the Governing Body
an item entitled: "Measures, including recommendations under article
33 of the ILO Constitution, to secure compliance by the Government of
Myanmar with the recommendations of the Commission of Inquiry".(1)
2. The measures taken by the Government of Myanmar following the
recommendations of the Commission of Inquiry established to examine its
observance of the forced labour Convention were described and analysed in
the report of the Director-General to the members of the Governing Body
dated 21 May 1999, which is reproduced as Appendix I. In response to the
Director-General's report, the Government of Myanmar presented a Memorandum
which is reproduced in Appendix II.
3. A discussion on the application of Convention No. 29 by Myanmar took
place in the Committee on the Application of Standards of the International
Labour Conference at its 87th Session in June 1999. The record of the
discussion appears as Appendix III. At the conclusion of this discussion,
the Conference Committee on the Application of Standards "decided to
include this case in a special paragraph in its report and to mention it as
a case of continued failure to implement a ratified Convention". The
special paragraph of the Committee's report reads as follows:
As regards the application by Myanmar of the Forced Labour Convention,
1930 (No. 29), the Committee noted the written and oral information
supplied by the Government, and the discussion which followed. It
noted in particular the Government's position that the finding of the
Commission of Inquiry and the Committee of Experts had no basis, and
that the report of the Director-General of 21 May 1999, supplied to
members of the Governing Body, on the measures taken by the Government
to comply with the recommendations of the Commission of Inquiry, was
based on false and misleading information. The Committee also noted
the issuance of Order No. 1/99 of 14 May 1999 directing that the power
to requisition forced labour under the Towns Act, 1907, and the
Village Act, 1907, not be exercised. The Committee recalled the long
history of the case and the series of actions taken by the ILO
supervisory bodies, including the recommendations of the Commission of
Inquiry established by the Governing Body. It considered that the
explanations provided by the Government did not respond to the
detailed and well-substantiated findings and recommendations of the
Commission of Inquiry and the Committee of Experts. It noted with deep
concern the findings of the Commission of Inquiry that there was
convincing information available that forced and compulsory labour on
a very large scale still occurred in Myanmar. The Committee regretted
that the Government had not allowed the Commission of Inquiry to visit
the country to verify the situation for itself. It could also have
been the occasion for the Government to present its own position
before the Commission in a very objective and impartial manner. It
regretted that the Government had shown no inclination to cooperate
with the ILO in this respect. It called upon the Governing Body, the
Committee of Experts and the Office to continue taking all possible
measures to secure the observance by Myanmar of the recommendations of
the Commission of Inquiry, which confirmed and expanded the Committee
of Experts' own previous conclusions.(2)
4. At the same 87th Session, the International Labour Conference adopted a
resolution on the widespread use of forced labour in Myanmar (Burma), which
is reproduced in Appendix IV.(3)
II. Measures that may be considered by the Governing Body
A. Effect to be given to the resolution on the
widespread use of forced labour in Myanmar,
adopted by the International Labour Conference
at its 87th Session (June 1999)
5. The text of the International Labour Conference resolution on the
widespread use of forced labour in Myanmar will be communicated to
governments of member States, and through them to national employers' and
workers' associations and relevant international organizations, and in
particular to intergovernmental organizations, non-governmental
organizations with advisory status, and other concerned non-governmental
organizations. Below are the proposals drawn up by the Director-General for
giving effect to paragraphs 3(b) and 3(c) of the resolution, which call for
action by the Governing Body.
Measures concerning technical cooperation
6. Paragraph 3(b) of the resolution concerns technical cooperation or
assistance which the Government of Myanmar could receive from the ILO. It
states that the Government of Myanmar should cease to benefit from any
technical cooperation or assistance from the ILO until such time as it has
implemented the recommendations of the Commission of Inquiry established to
examine its observance of the Forced Labour Convention, 1930 (No. 29), as
contained in paragraphs 539 and 540 of its report Forced labour in Myanmar
(Burma). The only exception is direct assistance to implement immediately
the said recommendations.
7. At the time of adoption of the resolution (June 1999), the ILO was not
engaged in any technical cooperation in Myanmar or with the Government of
Myanmar. Between 1991 and 1995, the ILO carried out four technical
cooperation projects funded by the United Nations Development Programme
(health and safety, social security, manpower planning and training needs).
In addition, three regional programmes involved Myanmar until 1996. The
scholarships programme also ended in 1996. The total estimated cost of this
cooperation from 1991 to 1996 was US$1,511,965.
8. In his letter to the Government of Myanmar of 25 November 1998, the
Director-General reiterated the ILO's willingness to provide all necessary
assistance to allow the Government to give effect to the recommendations in
paragraphs 539 and 540 of the report by the Commission of Inquiry. So far
no request for technical assistance for this purpose has been made by the
Government of Myanmar.
Invitations to meetings, symposia and seminars organized by the ILO
9. Paragraph 3(c) refers to invitations to attend meetings, symposia and
seminars organized by the ILO, which should no longer be extended to the
Government of Myanmar except in the case of meetings "that have the sole
purpose of securing immediate and full compliance with the said
recommendations". These include sessions of the Governing Body devoted to
the examination of questions relating to the implementation by Myanmar of
the Commission of Inquiry's recommendations. The paragraph refers to
meetings, symposia and seminars at which Members may be represented by
invitation. It does not refer to participation in the International Labour
Conference, which ensues from membership.
10. In light of the foregoing, and so long as the Governing Body -- or its
officers acting on its behalf -- has not noted the implementation of the
Commission of Inquiry's recommendations, the Governing Body may wish to
invite the Director-General:
(a) to ensure that no technical cooperation or assistance to the Government
of Myanmar, except for the purpose of direct assistance to implement
immediately the recommendations of the Commission of Inquiry, be considered
or undertaken by the Office;
(b) take the necessary steps to ensure that no proposal to invite or
invitation to attend meetings, symposia or seminars organized by the ILO be
extended to the Government of Myanmar, except for meetings that have the
sole purpose of securing immediate and full compliance with the Commission
of Inquiry's recommendations.
B. Measures under article 33 of the Constitution
11. At its 274th Session (March 1999), when it placed on the agenda of the
current session an item concerning the measures to be taken to secure
implementation by the Government of Myanmar of the Commission of Inquiry's
recommendations, the Governing Body made explicit reference to measures
that it might recommend to the International Labour Conference under
article 33 of the ILO Constitution.
12. Article 33 of the Constitution states that "in the event of any Member
failing to carry out within the time specified the recommendations, if any,
contained in the report of the Commission of Inquiry ... the Governing Body
may recommend to the Conference such action as it may deem wise and
expedient to secure compliance therewith". This article is the result of an
amendment adopted in 1946 with the purpose of removing reference solely to
the economic sanctions that could be imposed on a Member in the event of
its failing to carry out the recommendations of a Commission of Inquiry.
The Conference Delegation on Constitutional Questions emphasized that such
a general clause would leave the Governing Body full discretion to adapt
its action to the circumstances of the particular case.(4)
13. The Governing Body does not have any precedents for the application of
article 33 of the Constitution, and the following considerations are
intended simply to facilitate the Governing Body's decision.
14. Application of article 33 of the Constitution implies, on the one hand,
that the item be placed on the agenda of the International Labour
Conference and, on the other, that the Governing Body to have at its
disposal information allowing it to adopt those recommendations of the
Conference which it considers appropriate to secure compliance with the
recommendations on the part of the Member in question. This information
concerns both the nature of the measures that the Governing Body might
recommend to the Conference for adoption by the latter and the Member's
failure to comply with the Commission of Inquiry's recommendations.
Placing the item on the agenda of the 88th Session of the
International Labour Conference
15. In view of the seriousness of the consequences which could result from
applying article 33 and of the reasons leading to its application, it would
seem juridically necessary to place a specific item on the agenda of the
Conference. There is still relevance in the statement made in 1919 by the
Commission on International Labour Legislation, which emphasized that the
objection and complaint procedures had: "been carefully devised in order to
avoid the imposition of penalties, except in the last resort, when a State
has flagrantly and persistently refused to carry out its obligations under
a Convention. It can hardly be doubted that it will seldom, if ever, be
necessary to bring these powers into operation".(5)
16. Consequently, the Governing Body should consider, at the current
session, the placing on the agenda of the 88th Session of the Conference
(June 2000) of an item entitled: "Action recommended by the Governing Body
under article 33 of the Constitution -- Implementation of the
recommendations contained in the report of the Commission of Inquiry Forced
Labour in Myanmar (Burma)". It should be made clear that the decision at
the current session of the Governing Body to add this item to the agenda of
the 88th Session of the Conference in no way prejudges the content of the
recommendations to be presented by the Governing Body to the Conference.
Given its schedule of meetings, the Governing Body will be able to take a
decision in the content of its recommendations (if any) at its 277th
Session (March 2000).
17. The Governing Body may wish to consider placing on the agenda of the
88th Session of the Conference (June 2000) an item entitled: "Action
recommended by the Governing Body under article 33 of the Constitution --
Implementation of the recommendations contained in the report of the
Commission of Inquiry Forced Labour in Myanmar (Burma)".
Content of the recommendations under article 33 of the Constitution
18. The Conference made explicit reference in its 1999 resolution to the
agenda of the current session of the Governing Body, which mentions article
33 of the Constitution, at the same time deciding that certain measures
needed to be taken urgently. These are described in paragraphs 6 to 9
above. It is for the Governing Body to consider what other measures, if
any, should be recommended to the Conference under article 33.
19. The provisions of article 33 do not stipulate the nature of the
measures that the Governing Body may recommend for adoption by the
Conference where a Member flagrantly and persistently fails to carry out
its obligations. As noted above, the 1946 constitutional amendment was
intended to broaden the range of measures that might be recommended, which
had previously been limited to economic sanctions. While the range of
measures is extremely broad, the Governing Body nevertheless has good
reason for basing its decision on two criteria. The first ensues from the
recommendations of the Commission of Inquiry themselves: that the measure
to be taken must correspond to the objectives of the Commission's
recommendations. The second criterion ensues from article 33 itself and
concerns the fact that the measures must be deemed by the Governing Body to
be appropriate for securing compliance with the recommendations of the
Commission of Inquiry.
20. Before considering the measures that might be recommended to the
Conference, it is necessary to clarify a point raised previously by some
members of the Governing Body: namely, whether a Member may be expelled
from the ILO or have its rights suspended as a result of the flagrant and
persistent failure to carry out its obligations. Such a step may be taken
only on the basis of a specific provision. Article 13.4 of the Constitution
provides for the suspension of a Member's voting rights, but only where it
is in arrears in the payment of its financial contribution to the
Organization by two years or more. Moreover, the two constitutional
amendments adopted by the Conference at its 48th Session (1964) concerning
the suspension or expulsion of a Member did not enter into force because
the number of ratifications was too low. Thus, the Governing Body cannot
propose a decision concerning the suspension or expulsion of a Member.
21. A first category of measures would involve the international
organizations: the Director-General could be invited to inform the
international organizations of the Member's failure to comply and to ask
them to reconsider their cooperation with the Member concerned in the light
of the conclusions of the Commission of Inquiry and, if appropriate, to
cease any activity which could have the effect of abetting the practice of
forced or compulsory labour. A periodic report on the outcome of these
measures could be considered by the Governing Body or the Conference.
22. A second category of measures would involve the Members of the ILO, who
could be asked to reconsider their relations with the Member concerned in
the light of the conclusions of the Commission of Inquiry and to take
appropriate individual or collective measures to ensure that these
relations could not be exploited by the Member concerned to perpetuate or
develop the system of forced or compulsory labour referred to in the
conclusions of the Commission of Inquiry.
23. If the Governing Body so decides, the Office can submit to the 277th
Session of the Governing Body in March 2000 a paper detailing the various
options, taking account of the views put forward during the preliminary
examination of the question, in order to enable it at that session to adopt
recommendations under article 33 of the Constitution.
Information on compliance with the recommendations
of the Commission of Inquiry
24. From the available information referred to in the first part of this
paper, it is apparent that Myanmar has not complied with the
recommendations of the Commission of Inquiry within the time specified.
However, it is important that the Governing Body has access to updated
information in order to be able to reach an informed decision under article
33 of the Constitution.
25. At its 277th Session the Governing Body will have at its disposal
comments by the Committee of Experts on the Application of Conventions and
Recommendations, which will be holding its 70th Session from 25 November to
10 December 1999. The Governing Body could also ask the Director-General to
prepare an update to his report of 21 May 1999 on the measures taken by the
Government of Myanmar following the recommendations of the Commission of
Inquiry.
26. The Governing Body may wish to invite the Director-General to inform
the members of the Governing Body, by means of an update to his written
report dated 21 May 1999, to be communicated to them by 28 February 2000 at
the latest, of the measures taken by the Government of Myanmar to give
effect to the recommendations of the Commission of Inquiry, taking into
account in its preparation all the comments made by the Government of
Myanmar, the information provided by the employers' and workers'
organizations, and all other reliable sources.
Geneva, 7 October 1999.
Points for decision:
Paragraph 10;
Paragraph 17;
Paragraph 23;
Paragraph 26.
--------
1. GB.274/5/D.1 and discussion. See [Draft] Minutes of the Governing Body,
274th Session (March 1999), eighth sitting, pp. VIII/1-4.
2. International Labour Conference, 87th Session, Geneva, 1999, "Report of
the Committee on the Application of Standards", Part One, General Report,
Provisional Record No. 23, para. 195.
3. For the record of the discussion preceding the adoption of the
resolution see International Labour Conference, 87th Session, Geneva, 1999,
Provisional Record No. 27, pp. 27/5 to 27/13.
4. International Labour Conference, 29th Session (1946), Montreal, Report
II(1): Constitutional questions. Part 1: Report of the Delegation for
Constitutional Questions, para. 64.
5. "Report presented by the Commission on International Labour
Legislation", Official Bulletin, Vol. 1, p. 266.
------------------------------------------------------------------------
For further information, please contact the Official Relations Branch:
Tel: +41.22.799.7732
Fax: +41.22.799.8944
E-mail: RELOFF@xxxxxxx (Governing Body business only, please)
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<font face=3D"Courier New, Courier" size=3D2>[ NOTE FROM DAVID ARNOTT. THE
ILO GOVERNING BODY MEETS 4-19 NOVEMBER. IN ITS DISCUSSION OF BURMA IT
WILL HAVE BEFORE IT THE FOLLOWING DOCUMENT, WHICH IS ALSO ON THE ILO
WEBSITE AT
<a href=3D"http://www.ilo.org/public/english/20gb/docs/gb276/gb-6.htm%A0"; eu=
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INTERNATIONAL LABOUR
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GB.276/6<br>
[...ILO
LOGO...] &n=
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276th Session<br>
&nbs=
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Geneva, November 1999<br>
------------------------------------------------------------------------<br>
<br>
SIXTH ITEM ON THE AGENDA<br>
<br>
Measures, including action under article 33 of the Constitution of
the<br>
International Labour Organization, to secure compliance by the
Government<br>
of Myanmar with the recommendations of the Commission of Inquiry<br>
established to examine the observance of the Forced Labour Convention,
1930<br>
(No. 29)<br>
<br>
I. Information available on measures taken by the Government of
Myanmar<br>
following the recommendations of the Commission of Inquiry,
and action<br>
taken
in this regard within the ILO since March 1999<br>
<br>
1. At its 274th Session (March 1999) the Governing Body decided:<br>
<br>
(a) to request the Director-General to inform the members of the
Governing<br>
Body, by means of a written report, on or before 21 May 1999,
regarding<br>
measures which the Government of Myanmar has taken to comply with
the<br>
recommendations of the Commission of Inquiry, together with details of
any<br>
technical assistance requested or provided;<br>
<br>
(b) to request the Director-General, in preparing the=20
abovementioned<br>
report, to take into account any comments by the Government of Myanmar,
as<br>
well as information from workers' and employers' organizations and
from<br>
other reliable sources;<br>
<br>
(c) and immediately thereafter:<br>
<br>
(i) to request the Director-General to
disseminate the findings and<br>
conclusions of the Commission of Inquiry
throughout the UN system and<br>
include in the abovementioned report any
responses received; and<br>
<br>
(ii) to place on the agenda of the 276th Session
of the Governing Body<br>
an item entitled: "Measures, including
recommendations under article<br>
33 of the ILO Constitution, to secure compliance
by the Government of<br>
Myanmar with the recommendations of the
Commission of Inquiry".(1)<br>
<br>
2. The measures taken by the Government of Myanmar following the<br>
recommendations of the Commission of Inquiry established to examine
its<br>
observance of the forced labour Convention were described and analysed
in<br>
the report of the Director-General to the members of the Governing
Body<br>
dated 21 May 1999, which is reproduced as Appendix I. In response to
the<br>
Director-General's report, the Government of Myanmar presented a
Memorandum<br>
which is reproduced in Appendix II.<br>
<br>
3. A discussion on the application of Convention No. 29 by Myanmar
took<br>
place in the Committee on the Application of Standards of the
International<br>
Labour Conference at its 87th Session in June 1999. The record of
the<br>
discussion appears as Appendix III. At the conclusion of this
discussion,<br>
the Conference Committee on the Application of Standards "decided
to<br>
include this case in a special paragraph in its report and to mention it
as<br>
a case of continued failure to implement a ratified Convention".
The<br>
special paragraph of the Committee's report reads as follows:<br>
<br>
As regards the application by Myanmar of the
Forced Labour Convention,<br>
1930 (No. 29), the Committee noted the written
and oral information<br>
supplied by the Government, and the discussion
which followed. It<br>
noted in particular the Government's position
that the finding of the<br>
Commission of Inquiry and the Committee of
Experts had no basis, and<br>
that the report of the Director-General of 21
May 1999, supplied to<br>
members of the Governing Body, on the measures
taken by the Government<br>
to comply with the recommendations of the
Commission of Inquiry, was<br>
based on false and misleading information. The
Committee also noted<br>
the issuance of Order No. 1/99 of 14 May 1999
directing that the power<br>
to requisition forced labour under the Towns
Act, 1907, and the<br>
Village Act, 1907, not be exercised. The
Committee recalled the long<br>
history of the case and the series of actions
taken by the ILO<br>
supervisory bodies, including the
recommendations of the Commission of<br>
Inquiry established by the Governing Body. It
considered that the<br>
explanations provided by the Government did not
respond to the<br>
detailed and well-substantiated findings and
recommendations of the<br>
Commission of Inquiry and the Committee of
Experts. It noted with deep<br>
concern the findings of the Commission of
Inquiry that there was<br>
convincing information available that forced and
compulsory labour on<br>
a very large scale still occurred in Myanmar.
The Committee regretted<br>
that the Government had not allowed the
Commission of Inquiry to visit<br>
the country to verify the situation for itself.
It could also have<br>
been the occasion for the Government to present
its own position<br>
before the Commission in a very objective and
impartial manner. It<br>
regretted that the Government had shown no
inclination to cooperate<br>
with the ILO in this respect. It called upon the
Governing Body, the<br>
Committee of Experts and the Office to continue
taking all possible<br>
measures to secure the observance by Myanmar of
the recommendations of<br>
the Commission of Inquiry, which confirmed and
expanded the Committee<br>
of Experts' own previous conclusions.(2)<br>
<br>
4. At the same 87th Session, the International Labour Conference adopted
a<br>
resolution on the widespread use of forced labour in Myanmar (Burma),
which<br>
is reproduced in Appendix IV.(3)<br>
<br>
II. Measures that may be
considered by the Governing Body<br>
<br>
A. Effect to be given to the resolution on the<br>
widespread use of forced labour in Myanmar,<br>
adopted by the International Labour Conference<br>
at its 87th Session (June 1999)<br>
<br>
5. The text of the International Labour Conference resolution on=20
the<br>
widespread use of forced labour in Myanmar will be communicated to<br>
governments of member States, and through them to national employers'
and<br>
workers' associations and relevant international organizations, and
in<br>
particular to intergovernmental organizations, non-governmental<br>
organizations with advisory status, and other concerned
non-governmental<br>
organizations. Below are the proposals drawn up by the Director-General
for<br>
giving effect to paragraphs 3(b) and 3(c) of the resolution, which call
for<br>
action by the Governing Body.<br>
<br>
Measures concerning technical cooperation<br>
<br>
6. Paragraph 3(b) of the resolution concerns technical cooperation
or<br>
assistance which the Government of Myanmar could receive from the ILO.
It<br>
states that the Government of Myanmar should cease to benefit from
any<br>
technical cooperation or assistance from the ILO until such time as it
has<br>
implemented the recommendations of the Commission of Inquiry established
to<br>
examine its observance of the Forced Labour Convention, 1930 (No. 29),
as<br>
contained in paragraphs 539 and 540 of its report Forced labour in
Myanmar<br>
(Burma). The only exception is direct assistance to implement
immediately<br>
the said recommendations.<br>
<br>
7. At the time of adoption of the resolution (June 1999), the ILO was
not<br>
engaged in any technical cooperation in Myanmar or with the Government
of<br>
Myanmar. Between 1991 and 1995, the ILO carried out four technical<br>
cooperation projects funded by the United Nations Development
Programme<br>
(health and safety, social security, manpower planning and training
needs).<br>
In addition, three regional programmes involved Myanmar until 1996.
The<br>
scholarships programme also ended in 1996. The total estimated cost of
this<br>
cooperation from 1991 to 1996 was US$1,511,965.<br>
<br>
8. In his letter to the Government of Myanmar of 25 November 1998,
the<br>
Director-General reiterated the ILO's willingness to provide all
necessary<br>
assistance to allow the Government to give effect to the recommendations
in<br>
paragraphs 539 and 540 of the report by the Commission of Inquiry. So
far<br>
no request for technical assistance for this purpose has been made by
the<br>
Government of Myanmar.<br>
<br>
Invitations to meetings, symposia and seminars organized by the ILO<br>
<br>
9. Paragraph 3(c) refers to invitations to attend meetings, symposia
and<br>
seminars organized by the ILO, which should no longer be extended to
the<br>
Government of Myanmar except in the case of meetings "that have the
sole<br>
purpose of securing immediate and full compliance with the said<br>
recommendations". These include sessions of the Governing Body
devoted to<br>
the examination of questions relating to the implementation by Myanmar
of<br>
the Commission of Inquiry's recommendations. The paragraph refers=20
to<br>
meetings, symposia and seminars at which Members may be represented
by<br>
invitation. It does not refer to participation in the International
Labour<br>
Conference, which ensues from membership.<br>
<br>
10. In light of the foregoing, and so long as the Governing Body -- or
its<br>
officers acting on its behalf -- has not noted the implementation of
the<br>
Commission of Inquiry's recommendations, the Governing Body may wish
to<br>
invite the Director-General:<br>
<br>
(a) to ensure that no technical cooperation or assistance to the
Government<br>
of Myanmar, except for the purpose of direct assistance to=20
implement<br>
immediately the recommendations of the Commission of Inquiry, be
considered<br>
or undertaken by the Office;<br>
<br>
(b) take the necessary steps to ensure that no proposal to invite=20
or<br>
invitation to attend meetings, symposia or seminars organized by the ILO
be<br>
extended to the Government of Myanmar, except for meetings that have
the<br>
sole purpose of securing immediate and full compliance with the
Commission<br>
of Inquiry's recommendations.<br>
<br>
B. Measures under article 33 of the Constitution<br>
<br>
11. At its 274th Session (March 1999), when it placed on the agenda of
the<br>
current session an item concerning the measures to be taken to
secure<br>
implementation by the Government of Myanmar of the Commission of
Inquiry's<br>
recommendations, the Governing Body made explicit reference to
measures<br>
that it might recommend to the International Labour Conference=20
under<br>
article 33 of the ILO Constitution.<br>
<br>
12. Article 33 of the Constitution states that "in the event of any
Member<br>
failing to carry out within the time specified the recommendations, if
any,<br>
contained in the report of the Commission of Inquiry ... the Governing
Body<br>
may recommend to the Conference such action as it may deem wise and<br>
expedient to secure compliance therewith". This article is the
result of an<br>
amendment adopted in 1946 with the purpose of removing reference solely
to<br>
the economic sanctions that could be imposed on a Member in the event
of<br>
its failing to carry out the recommendations of a Commission of
Inquiry.<br>
The Conference Delegation on Constitutional Questions emphasized that
such<br>
a general clause would leave the Governing Body full discretion to
adapt<br>
its action to the circumstances of the particular case.(4)<br>
<br>
13. The Governing Body does not have any precedents for the application
of<br>
article 33 of the Constitution, and the following considerations=20
are<br>
intended simply to facilitate the Governing Body's decision.<br>
<br>
14. Application of article 33 of the Constitution implies, on the one
hand,<br>
that the item be placed on the agenda of the International Labour<br>
Conference and, on the other, that the Governing Body to have at=20
its<br>
disposal information allowing it to adopt those recommendations of
the<br>
Conference which it considers appropriate to secure compliance with
the<br>
recommendations on the part of the Member in question. This
information<br>
concerns both the nature of the measures that the Governing Body
might<br>
recommend to the Conference for adoption by the latter and the
Member's<br>
failure to comply with the Commission of Inquiry's recommendations.<br>
<br>
Placing the item on the agenda of the 88th Session of the<br>
International Labour Conference<br>
<br>
15. In view of the seriousness of the consequences which could result
from<br>
applying article 33 and of the reasons leading to its application, it
would<br>
seem juridically necessary to place a specific item on the agenda of
the<br>
Conference. There is still relevance in the statement made in 1919 by
the<br>
Commission on International Labour Legislation, which emphasized that
the<br>
objection and complaint procedures had: "been carefully devised in
order to<br>
avoid the imposition of penalties, except in the last resort, when a
State<br>
has flagrantly and persistently refused to carry out its obligations
under<br>
a Convention. It can hardly be doubted that it will seldom, if ever,
be<br>
necessary to bring these powers into operation".(5)<br>
<br>
16. Consequently, the Governing Body should consider, at the=20
current<br>
session, the placing on the agenda of the 88th Session of the
Conference<br>
(June 2000) of an item entitled: "Action recommended by the
Governing Body<br>
under article 33 of the Constitution -- Implementation of the<br>
recommendations contained in the report of the Commission of Inquiry
Forced<br>
Labour in Myanmar (Burma)". It should be made clear that the
decision at<br>
the current session of the Governing Body to add this item to the agenda
of<br>
the 88th Session of the Conference in no way prejudges the content of
the<br>
recommendations to be presented by the Governing Body to the
Conference.<br>
Given its schedule of meetings, the Governing Body will be able to take
a<br>
decision in the content of its recommendations (if any) at its=20
277th<br>
Session (March 2000).<br>
<br>
17. The Governing Body may wish to consider placing on the agenda of
the<br>
88th Session of the Conference (June 2000) an item entitled:
"Action<br>
recommended by the Governing Body under article 33 of the Constitution
--<br>
Implementation of the recommendations contained in the report of=20
the<br>
Commission of Inquiry Forced Labour in Myanmar (Burma)".<br>
<br>
Content of the recommendations under article 33 of the Constitution<br>
<br>
18. The Conference made explicit reference in its 1999 resolution to
the<br>
agenda of the current session of the Governing Body, which mentions
article<br>
33 of the Constitution, at the same time deciding that certain
measures<br>
needed to be taken urgently. These are described in paragraphs 6 to
9<br>
above. It is for the Governing Body to consider what other measures,
if<br>
any, should be recommended to the Conference under article 33.<br>
<br>
19. The provisions of article 33 do not stipulate the nature of the<br>
measures that the Governing Body may recommend for adoption by the<br>
Conference where a Member flagrantly and persistently fails to carry
out<br>
its obligations. As noted above, the 1946 constitutional amendment
was<br>
intended to broaden the range of measures that might be recommended,
which<br>
had previously been limited to economic sanctions. While the range
of<br>
measures is extremely broad, the Governing Body nevertheless has
good<br>
reason for basing its decision on two criteria. The first ensues from
the<br>
recommendations of the Commission of Inquiry themselves: that the
measure<br>
to be taken must correspond to the objectives of the Commission's<br>
recommendations. The second criterion ensues from article 33 itself
and<br>
concerns the fact that the measures must be deemed by the Governing Body
to<br>
be appropriate for securing compliance with the recommendations of
the<br>
Commission of Inquiry.<br>
<br>
20. Before considering the measures that might be recommended to=20
the<br>
Conference, it is necessary to clarify a point raised previously by
some<br>
members of the Governing Body: namely, whether a Member may be
expelled<br>
from the ILO or have its rights suspended as a result of the flagrant
and<br>
persistent failure to carry out its obligations. Such a step may be
taken<br>
only on the basis of a specific provision. Article 13.4 of the
Constitution<br>
provides for the suspension of a Member's voting rights, but only where
it<br>
is in arrears in the payment of its financial contribution to the<br>
Organization by two years or more. Moreover, the two constitutional<br>
amendments adopted by the Conference at its 48th Session (1964)
concerning<br>
the suspension or expulsion of a Member did not enter into force
because<br>
the number of ratifications was too low. Thus, the Governing Body
cannot<br>
propose a decision concerning the suspension or expulsion of a
Member.<br>
<br>
21. A first category of measures would involve the international<br>
organizations: the Director-General could be invited to inform the<br>
international organizations of the Member's failure to comply and to
ask<br>
them to reconsider their cooperation with the Member concerned in the
light<br>
of the conclusions of the Commission of Inquiry and, if appropriate,
to<br>
cease any activity which could have the effect of abetting the practice
of<br>
forced or compulsory labour. A periodic report on the outcome of
these<br>
measures could be considered by the Governing Body or the
Conference.<br>
<br>
22. A second category of measures would involve the Members of the ILO,
who<br>
could be asked to reconsider their relations with the Member concerned
in<br>
the light of the conclusions of the Commission of Inquiry and to
take<br>
appropriate individual or collective measures to ensure that these<br>
relations could not be exploited by the Member concerned to perpetuate
or<br>
develop the system of forced or compulsory labour referred to in=20
the<br>
conclusions of the Commission of Inquiry.<br>
<br>
23. If the Governing Body so decides, the Office can submit to the
277th<br>
Session of the Governing Body in March 2000 a paper detailing the
various<br>
options, taking account of the views put forward during the
preliminary<br>
examination of the question, in order to enable it at that session to
adopt<br>
recommendations under article 33 of the Constitution.<br>
<br>
Information on compliance with the recommendations<br>
of the Commission of Inquiry<br>
<br>
24. From the available information referred to in the first part of
this<br>
paper, it is apparent that Myanmar has not complied with the<br>
recommendations of the Commission of Inquiry within the time
specified.<br>
However, it is important that the Governing Body has access to
updated<br>
information in order to be able to reach an informed decision under
article<br>
33 of the Constitution.<br>
<br>
25. At its 277th Session the Governing Body will have at its
disposal<br>
comments by the Committee of Experts on the Application of Conventions
and<br>
Recommendations, which will be holding its 70th Session from 25 November
to<br>
10 December 1999. The Governing Body could also ask the Director-General
to<br>
prepare an update to his report of 21 May 1999 on the measures taken by
the<br>
Government of Myanmar following the recommendations of the Commission
of<br>
Inquiry.<br>
<br>
26. The Governing Body may wish to invite the Director-General to
inform<br>
the members of the Governing Body, by means of an update to his
written<br>
report dated 21 May 1999, to be communicated to them by 28 February 2000
at<br>
the latest, of the measures taken by the Government of Myanmar to
give<br>
effect to the recommendations of the Commission of Inquiry, taking
into<br>
account in its preparation all the comments made by the Government
of<br>
Myanmar, the information provided by the employers' and workers'<br>
organizations, and all other reliable sources.<br>
<br>
Geneva, 7 October 1999.<br>
<br>
Points for decision:<br>
<br>
Paragraph 10;<br>
Paragraph 17;<br>
Paragraph 23;<br>
Paragraph 26.<br>
<br>
<br>
<br>
--------<br>
<br>
1. GB.274/5/D.1 and discussion. See [Draft] Minutes of the Governing
Body,<br>
274th Session (March 1999), eighth sitting, pp. VIII/1-4.<br>
<br>
2. International Labour Conference, 87th Session, Geneva, 1999,
"Report of<br>
the Committee on the Application of Standards", Part One, General
Report,<br>
Provisional Record No. 23, para. 195.<br>
<br>
3. For the record of the discussion preceding the adoption of the<br>
resolution see International Labour Conference, 87th Session, Geneva,
1999,<br>
Provisional Record No. 27, pp. 27/5 to 27/13.<br>
<br>
4. International Labour Conference, 29th Session (1946), Montreal,
Report<br>
II(1): Constitutional questions. Part 1: Report of the Delegation
for<br>
Constitutional Questions, para. 64.<br>
<br>
5. "Report presented by the Commission on International Labour<br>
Legislation", Official Bulletin, Vol. 1, p. 266.<br>
<br>
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